People v. Fish
Not reported in full text; certified for partial publication (2024)
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Rule of Law:
When a unanimity instruction is warranted for a charged offense because guilt may rest on more than one act, it should also be expressly extended to any lesser included offense for which guilt may similarly rest on multiple acts, though failure to do so may be harmless error.
Facts:
- On September 25, 2021, Joseph Fish told a victim he was going to bash her head in with a rock and kill her.
- On March 24, 2022, Fish had a lengthy argument with a different victim, with whom he had been in a relationship for 16 or 17 years and had a child.
- After several hours of arguing, Fish hit this victim in the face with his closed fist.
- Approximately two hours later, Fish approached the victim carrying a metal bar or rod.
- The victim, afraid, ran away, and as she looked back, the metal rod ricocheted off the ground, hitting her in the face and causing a one-inch cut on her cheek.
- After being arrested for the March 24, 2022 incident, Fish called the victim from jail and told her not to cooperate with the prosecution, stating she would be murdered if she appeared in court.
Procedural Posture:
- In October 2021, the State of California charged Joseph Fish in Lake County Superior Court (trial court) with criminal threats, brandishing a weapon, and possession of drug paraphernalia.
- In December 2021, Fish pled guilty in Lake County Superior Court to one count of making a criminal threat, in exchange for a grant of probation.
- In March 2022, Fish was arrested and subsequently charged by information in Lake County Superior Court with corporal injury to a cohabitant, assault with a deadly weapon, assault with force likely to produce great bodily injury, and dissuading a witness, along with 'strike' prior and aggravating sentencing factor allegations.
- A jury in Lake County Superior Court found Fish guilty of assault with a deadly weapon and dissuading a witness, and guilty of the lesser included offense of domestic battery (for the corporal injury charge); the jury found him not guilty of assault with force likely to produce great bodily injury and made true findings on the strike prior and aggravating factors.
- After the jury trial, the Lake County Superior Court considered and rejected Fish's motion to withdraw his guilty plea from the earlier case.
- The Lake County Superior Court sentenced Fish in a consolidated hearing for both cases.
- Fish, as appellant, appealed his convictions and sentence in both cases (Appeal Nos. A168087 and A168088) to the California Court of Appeal, First Appellate District, which consolidated the appeals for all purposes.
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Issue:
Does a trial court err by failing to expressly extend a unanimity instruction, given for a charged offense where guilt may rest on more than one act, to a lesser included offense for which guilt may similarly rest on the same multiple acts, and if so, is such an error reversible?
Opinions:
Majority - Goldman, J.
Yes, a trial court should expressly instruct the jury that the unanimity requirement applies both to the charged offense and to any lesser included offense when a guilty finding may rest on more than one act, but in this specific case, the error was harmless. The trial court's unanimity instruction explicitly named only the charged offense (corporal injury to a cohabitant) and omitted the lesser included offense (domestic battery), which arguably injected confusion into the deliberative process, even if the prosecutor's closing argument implied unanimity for both. However, this error was harmless beyond a reasonable doubt under Chapman v. California because the record provided no rational basis for the jury to distinguish between the two alleged acts (punching and throwing a metal rod) that could form the basis of the domestic battery conviction. Fish's counsel did not offer a differentiated defense for these acts, and the jury, by convicting Fish of assault with a deadly weapon based on the rod, necessarily credited the victim's testimony and rejected any general credibility challenges. Since both acts independently constituted offensive touching, the jury's belief in the victim's account for either act would lead to a domestic battery conviction. Regarding the separate claim of instructional error for the definition of a deadly weapon, the court found CALCRIM No. 875, which instructs the jury to consider "all the surrounding circumstances" in determining if an object is "capable of causing and likely to cause death or great bodily injury," was sufficient. In re B.M. did not establish new law requiring a specific instruction on "limited injury or lack of injury." Even if further clarification was warranted, any error was harmless under People v. Watson due to the strong evidence that the metal rod, as thrown, was a deadly weapon, irrespective of the ultimate severity of the injury after ricocheting.
Analysis:
This case clarifies the application of unanimity instructions to lesser included offenses, establishing a clear directive for trial courts to explicitly extend such instructions to prevent jury confusion, even if the error may be deemed harmless on appeal. It reinforces that while courts should use specific language, instructional errors are subject to harmless error analysis, distinguishing between constitutional (Chapman) and non-constitutional (Watson) errors. The decision also affirms that standard jury instructions for 'deadly weapon' are generally sufficient, even when considering the extent of injury as per In re B.M., as long as all relevant circumstances are considered.
